Service Agreement

THIS SERVICE AGREEMENT (“AGREEMENT”) HEREBY CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN TOUCHPOINTIQ, INC (“COMPANY”), A DELAWARE CORPORATION, AND YOU (“CUSTOMER”) BEING A PERSON OR BUSINESS ENTITY WHO HAS REQUESTED THE EXPLICIT USE OF SERVICES PROVIDED BY COMPANY TO CUSTOMER. BY ESTABLISHING AN ACCOUNT AND/OR EXECUTED AN ORDER WITH COMPANY, YOU HEREBY ACKNOWLEDGE AND CONFIRM THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, UNDERSTOOD THIS AGREEMENT IN ITS ENTIRETY AND HAVE ACCEPTED ALL TERMS AND CONDITIONS SET FORTH HEREAFTER. IN THE EVENT YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT ESTABLISH AN ACCOUNT NOR EXECUTE ANY ORDER. FURTHERMORE YOUR USE OF SERVICES PROVIDED BY COMPANY SHALL BE PROHIBITED. THIS SERVICE AGREEMENT DOES NOT GRANT YOU A LICENSE TO ANY SOFTWARE WHETHER OWNED BY COMPANY OR PROVIDED BY A 3RD PARTY. ANY/ALL ORDER RESULTS WHETHER THROUGH AN INDIVIDUAL CAMPAIGN OR CUMULATIVE CAMPAIGNS ARE NOT GUARANTEED.

• Services Provided: Company service provides on demand software and services (“Services”) for the electronic identification of consumers that match Customer’s requested criteria. Company service may include, upon request, the distribution of approved Customer content to either said identifiable consumers or to Customer’s existing consumers base (“Users”). Company offers formatting and transmittal services of the electronic content Customer has requested to be distributed. Company offers Customer support Company assumes and Customer acknowledges that the Services are used for business purposes only.
• Display of Agreement: This Agreement, its terms and conditions as set forth herein, as well as any additional Company guidelines and/or operating policies shall be posted on Company’s website www.touchsights.com (the “Site”), including, but not limited to Company’s Anti-Spam Policy; Legal and Privacy Policy; Opt-out Policy; Copyright Policy; Cancellation Policy; and Website Privacy Policy; (collectively, the “Policies”). Company may modify the terms and conditions of this Agreement and/or the Policies. All such changes shall become effective upon posting of the revised Agreement and/or Policies, on the Site. Customer’s use of the Services thereafter shall be subject thereto. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by Company with respect to future functionality or features.
• Products: Company offers five separate and unique products (“Products”) as listed below:
• Contact Builder: Customer provided keyword(s) best illustrating Brand, Service and/or Product used to propagate various social and search engine platforms to identify unique consumers mentioning in conversation or in search thereof of said keyword(s).
• Personalized Ad: The serving of personalized and approved ads/content to uniquely identified consumers on behalf of Customer.
• Article Drive: The serving of a personalized ad driving opt-ins to a branded opt-in form to build leads.
• Email Automation: Create an automated email messaging solution with a pre-set delivery of up to 8 customized emails.
• Social Link: Analyze social media followers, to help identify them.

Customers may elect to purchase each Product individually or can combine one or more into a unique package specific to their current requirements:

• Design Services: In addition to the Services, Customer may elect to purchase secondary design services (“Design Services”), which may vary from Customer to Customer dependent upon requirement at any given time. Design Services provided to Customer by Company may be fulfilled directly by Company or completed through an authorized 3rd party. Design Services are separate and distinct from the Services and are not required for Customer’s use or enjoyment of the Services. In the event of any conflict between the Services provided within this Agreement and any Design Service requested by Customer, the terms and conditions of this Agreement shall govern, unless the parties expressly specify and agree in writing.
• Pricing and Purchase: Pricing for the Services are based upon product type. Product(s) may requires and stipulate a minimum purchase volume. Customer may choose to purchase one or more products at any given time. Customer Order shall clearly define and serve as a record of the Customer’s product selection, volume(s), term, pricing, setup fees, payment method and other account information as demeaned necessary by Company. Customer may modify, add-to or extend  their existing Service at any time during the term of this Agreement provided such changes are in accordance with Company’s other Policies.
• Fees and Payment: In consideration for the Services to be provided by Company, Customer agrees to pay all amounts in advance, as set forth in the Order. Paid set-up fees are non-refundable. All requested Design Services provided by Company shall be paid in advance of work being undertaken. Paid Design Services fees are non-refundable. All fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement. Any payment not received by Company on the due date may be subject, at Company’s sole discretion, to a late fee equal to 2.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue. In the event Customer fails to make timely payments when due, Company may, in its sole discretion, discontinue, terminate or suspend the Services, without incurring any liability from Customer. Despite any such discontinuation or suspension of Service, Customer acknowledges and agrees that it will be required to pay any and all outstanding fees for the remainder of the term of this Agreement. For amounts outstanding after sixty (60) days from its receipt of the invoice therefor, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to court and attorneys’ fees and expenses.
• Customers’ Recipient Data: In offering the Services, Company may collect personal information pertaining to Recipients. Company will not own any data, information or material that any of its Customers submit to Company in and through the course of its provision of the Services (“Customers’ Recipient Data”). Customers are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customers’ Recipient Data, and Customers are responsible for maintaining, securing and storing all Customers’ Recipient Data in accordance with applicable law. Company will not be responsible nor liable for the deletion, correction, destruction, damage, loss or failure to store any Customers’ Recipient Data.
• Customer Information: Company may collect certain personal and business-related information about its Customers in order to provide the Services (the “Customer Information”). If you have provided your contact information, Company may contact you for marketing purposes by various means, including but not limited to regular mail, email or telephone. When you activate an account on Company’s platform , you are hereby granting your express consent to receive marketing communications via direct mail, email (at the email address you provided when activating your account), telephone (at the number you provided when activating your account), pre-recorded messages (at the number you provided when activating your account), text messages (if you provided a wireless telephone number), instant messages or other communication methods.
• Disclosures of Customer Information: In addition to the uses of Customer Information as set forth above, Customer agrees that Company may use the Customer Information in connection with its provision of the Services. If Customer purchased the Services as a result of the marketing efforts of a marketing partner of Company, Customer agrees that Company may disclose the Customer Information to such marketing partner. Notwithstanding the foregoing, Company will not provide any Customer Information to any non-related third party without Customer’s authorization and will use reasonable efforts to prohibit any third party that receives any such Customer Information from selling or redistributing such Customer Information without Customer’s authorization.
• Passwords: In connection with the provision of the Services, Company will provide to Customer’s designated email address (designated by Customer at the time an account is established), information such as user IDs and/or passwords which will enable Customer to access the Company Platform (the “Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify Company promptly in the event there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer’s negligence or intentional misconduct. Any unauthorized use of user IDs or Passwords by Customer will constitute a material breach of this Agreement.
• Proprietary Rights: This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services (the “Software”), and the Services, are and shall remain the sole and exclusive property of Company. Accordingly, Customer acknowledges that Company owns all rights, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software may contain proprietary information and trade secrets of Company and will not take any actions inconsistent with Company’s ownership and rights in and to the Software and Service. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, timeshare, grant a security interest in, or otherwise transfer any rights in or to the Software or Service, or make the Software  or Service available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software or Service for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or website; (iv) use or distribute the Software or Service in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software or Service in any format other than machine-readable format. All rights in the Software or Service not explicitly granted herein, are reserved by Company. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
• Use of Services: Customer acknowledges and agrees that it will use the Services only for Customer’s “internal business purposes” through Customer’s employees or by independent contractors hired by Customer. For the avoidance of doubt, the term “internal business purposes,” as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or volatile of third-party privacy rights; (iii) send messages to any purchased (email) lists, distribution lists, or spam email addresses; or (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Customer agrees to report immediately to Company, and to use best efforts to stop immediately, any violation of the terms and conditions set forth above or as separately noted in any of the Policies.
• No Tampering: Any and all email electronically transmitted through the Services must be CAN-SPAM ACT, 15 U.S.C. 7701-7713 complaint and contain an “unsubscribe” link that allows visitors to remove themselves from Customer’s mailing list and a link to Touchsights’ Policies. Customer agrees that it will not remove, disable or attempt to remove or disable either link. Further, each such email message may contain an automatic identifying footer for which Customer agrees that it will not remove, disable or attempt to remove or disable such footer.
• Confidential Information: Both Company and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). In the event that the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice of such pending disclosure. For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party’s business affairs, internal operations, personnel, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same from the Disclosing Party, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information; (iv) can be proven by competent evidence to have been independently developed by the Receiving Party; (v) is furnished by the Disclosing Party to a third party without restriction on the third party’s right of disclosure; (vi) is approved in writing for release by the Disclosing Party; or (vii) is required to be disclosed by order of court or law.
• Representations, Warranties and Covenants: Customer represents, warrants and covenants that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services of Company unless authorized in writing by Company.
• Disclaimer of Warranties: THE SERVICES (AND THE DESIGN SERVICES, AS APPLICABLE) ARE PROVIDED AS-IS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE REPRESENTATIVES) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES. COMPANY AND THEIR REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
• Limitation of Liability: IN NO EVENT WILL COMPANY OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE DESIGN SERVICES, IF APPLICABLE), OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF TOUCHSIGHTS OR ITS REPRESENTATIVES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL COMPANY AND ITS REPRESENTATIVES’ TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO TOUCHSIGHTS FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. IN THE EVENT OF ANY FAILURE OR NON-PROVISIONING OF THE SERVICES (INCLUSIVE OF DESIGN SERVICES) BY COMPANY, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR COMPANY TO USE COMMERCIALLY REASONABLE EFFORTS TO AMEND, REPAIR AND/OR CORRECT SAID ERROR(S) AND PROVISION THE SERVICE.
• Indemnification: Customer agrees to indemnify, defend and hold harmless Company, its Representatives, its Affiliates and their respective officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) arising from Customer’s negligence or intentional misconduct, Customer’s violation of any applicable law, including the federal CAN SPAM Act, 15 U.S.C. 7701-7713, this Agreement or the Policies, Customer’s breach of any of its representations, warranties or covenants set forth herein, or Customer’s infringement of any intellectual property rights or other rights of any person or entity.
• Term and Termination: Agreement terms are not based on a set number of calendar days. Company does not bill on a calendar cycle bases. Cuatomer Agreement term are based on the Product(s) selected, the Recipient volume chosen and/or the volume of electronically transmitted message sent on Customers behalf. Customer term will expire upon the completion of any/all of the requirements outlined in the Order. To calculate an approximate expiration date for Customer Order, Customer should review the daily volume history within their Company account and extend that calculation out over future days. Customer may elect to automatically renew term by checking the appropriate box indicated on Order or by notifying Company of said wishes. In the event Customer elects to automatically renew, Company will bill Customer for the same Service and term as indicated on the Order for each concurrent term thereafter until such time that you elect to terminate this Agreement. Customer may terminate said Agreement by providing written notification to Company by either submission of trouble ticket within Customer’s account or by sending an email to support@touchsights.com. Customer must receive a return confirmation email acknowledging receipt of cancellation request within 2 business days of said request being submitted. In the event such confirmation has not been received, you must contact Company directly, Failure to receive confirmation of your request may delay your request from being implemented. Upon confirmation, your Order will then terminate on completion of its then current term. If Customer wishes to terminate only Design Services provided hereunder, it should contact its account manager prior to such services being performed. Company may terminate this Agreement at any time if Customer does not abide by the terms of this Agreement. In the event of any suspected violation of the terms, conditions or restrictions set forth in this Agreement, Company may immediately disable Customer’s access to the Services and suspend its provision thereof. Any default in the performance of any of Customer’s obligations hereunder, shall be considered a material breach of this Agreement and shall entitle Company to terminate immediately this Agreement, to terminate Company’s provision of the Services and to pursue all available equitable and legal remedies. Upon termination of this Agreement, Customer’s payment of all unpaid and/or outstanding Fees shall be due, in full, immediately. Customer acknowledges and agrees that upon termination, Company has no obligation to retain the Customers’ Recipient Data or materials and may delete and destroy such Customers’ Recipient Data and material without providing Customer with notice of such deletion.
• Governing Law: This Agreement will be governed by the laws of the United States, state of Delaware as applied to agreements entered into. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
• Arbitration: Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Wilmington, Delaware. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Company shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of Delaware, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
• Relationship: This Agreement does not create a partnership, joint venture or agency relationship between Company and Customer. Customer does not have any right, power, or authority to act as a legal representative of Company.
• Assignment: Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Company. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
• Severability: In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
• Survival: The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
• Entire Agreement: This Agreement, its terms and conditions hereto, constitute the entire agreement and understanding between Company and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, whether oral or written, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.
• No Waivers: Company’s failure to exercise any of its rights under this Agreement will not constitute nor be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
• Notice: Company may provide Customer with general notice by electronic mail to Customer’s email address of record, or by written communication sent by first class mail or pre-paid post to Customer’s address of record, or to such other address designated by Customer and communicated to Company in accordance with this notice delivery provision. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to Company (such notice shall be deemed given when received by Company) by using one of the following means: 1) letter delivered by a nationally recognized overnight delivery service; or 2) by first class postage prepaid mail to Touch Sights at the following address: TouchPoint IQ Inc., Attn: Accounting Department; 300 Delaware Ave, Ste 210, Wilmington, Delaware 19801. Either the Customer or Company may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with this notice delivery provisions.
• Export Restrictions: Customer acknowledges that the Services may be subject to The United States’ or other countries’ export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
• Miscellaneous: Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by Company and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third-party beneficiaries.

This Agreement made effective July 1, 2018